DHAMI MANUFACTURERS vs HEMKUND SUPER PACK

THIS is a complaint filed by the Complainant-firm M/s. Dhami Manufacturer, Barnala and another against M/s. Hemkund Super Pack, Mohali under Section 17 read with Section 12 of the Consumer Protection Act, 1986 (for short ''the Act'').

THE gist of the complaint is that S/Shri Prabhjot Singh and his father Gurcharan Singh are the partners of the firm known as M/s. Dhami Manufacturers, Barnala and they are enaged in the manufacture of paper moulded egg trays in their manufacturing unit a Barnala. From the partnership deed dated 25.5.1990 (Annex. R-7), both the partners have equal share in profit and loss of the firm. THE case of the complainant-firm is that on August 9, 1990 it entered into an agreement with the respondentconcern to supply a plant and machinery for the said project on turn-key basis at a total cost of Rs.1 18,50,000/-. As per the agreement (Annex. P-l), the moulding machine of the plant was to manufacture 900 trays per hour whereas it manufactured about 450/500 trays per hour. THE grievance of the complainant is that even though the complainant mm requested the respondent to rectify the defects, its technicians were unable to remove the defects. THE complainant-firm thereupon preferred this complaint praying that the respondent be directed to pay damages to the tune of Rs. 19,84,360/- alongwith interest @ 18% p.a. on the said amount as detailed in paragraph 13 of the complaint. It is unnecessary to give in detail the counter version of the Opposite Party. Suffice it to say that it has taken a formidable objection to the maintainability of this complaint. It has been pleaded that the complainant-firm does not fall within the definition of ''consumer'' as defined in Section 2(1)(d)(i) of the Act as it purchased the machinery to be used for commercial purpose. On merits, it was pleaded that the machinery supplied was to the full satisfaction of the complainant, which did not make full payment as agreed upon.

For the reasons best known to the complainant, it has not chosen to adduce any evidence either by way of affidavit or otherwise in support of the averments made in the complaint. It has remained contented by filing some documents. Even the complaint filed before this Commission has not been verified by the complainant. The averments made in the written statement have also not been refuted by the complainant-firm. Hence on the ground of no evidence alone, the present complaint could be dismissed at the threshold.

AFTER hearing the parties and perusing the record with requisite care, we are of the opinion that in the present case, the machinery was purchased for commercial purpose. According to the allegations in the complaint, the complainant-firm was manufacturing paper moulded egg trays and the machinery purchased from the Opposite Party was worth more than Rs. 18,500/-. Therefore, it is clear that the machinery was purchased for starting manufacturing activity on a large scale. ''Consumer'' has been defined in Section 2(1)(d)(i) of the Act as follows:- "any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use in made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose."

COMMERCIAL activity has been discussed in detail by the National Commission in case title -Synco Textile Pvt. Ltd. v. Greaves Cotton Co. Ltd. I (1991) CPJ 499 (NC), as follows:- "Going by the plain dictionary meaning of the words used in the definition section the intention of Parliament must be understood to be to exclude from the scope of the expression ''consumer'' any person who buys goods for the purpose of their being used in any activity engaged on a large scale for the purpose of making profit. As already indicated since resale of the goods has been separately and specifically mentioned in the earlier portion of the definition clause, the words "for any commercial purpose" must be understood as covering cases other than those of resale of the goods, it is thus obvious that Parliament wanted to exclude from the scope of the definition not merely persons who obtain goods for resale but also those who purchase goods with a view to using such goods for carrying on any activity on a large scale for the purpose earning profit. 0n this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit making activity will not be ''consumer'' entitled to protection under the Act. It seems to us clear that the intention of Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit making activity engaged on a large seal. It would thus follow that cases of purchase of goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit will all fall outside the scope of the definition. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large scale manufacturing or processing activity carried on for profit. In order that the exclusion clause should apply it is however necessary that there should be close nexus between the transaction of purchase of goods and the large scale activity carried on for earning profit."

In the instant case, the machinery purchased from the Opposite Party has a direct and close nexus with the large scale commercial activity carried on by the complainant to earn large profits. The complainant cannot, therefore, be regarded as a ''consumer'' entitled to seek any relief under the provisions of the Act. We uphold the said preliminary objection raised by the Opposite Party and dismiss the original complaint on the ground that the complainant-firm is not a ''consumer'' entitled to maintain a complaint petition under the Act. The complainant will however, be at liberty to make a claim in an appropriate Court of law, if so advised. In the circumstances, there shall be no order as to costs. Complaint dismissed.